Can You Refuse a Red Flag Order?
Shortly after the February 2018 high school shooting in Parkland, Florida, the state of Florida passed its first risk protection order law, also known as a “red flag law.” Since then, Florida courts have issued a total of 2,649 risk protection orders. That is nearly five orders every day since the bill became law—as of August 2019, per Tampa Bay Times.
In December 2019, Jerron Smith became the first person convicted of failing to comply with a “red flag” confiscation order in the State of Florida. According to the South Florida Sun-Sentinel, Smith was found guilty for refusing to let law enforcement confiscate his weapons under the red flag law.
Smith was previously arrested and is still facing charges stemming from an incident where he is accused of shooting at a car driven by his friend, Travis Jackson, after an argument. After his arrest, deputies convinced the Judge in Broward County that Smith should not be allowed to possess firearms. The Judge signed a Temporary Risk Protection Order. When the deputies went to Smith’s home and informed him that he must surrender his firearms, Smith refused to do so without an attorney present.
“He never had an opportunity to understand what was going on,” said Smith’s defense lawyer Jim Lewis. “He thought he had a right to have an attorney present before the order was executed.”
When a risk protection order is issued by a court, the respondent does not have the right to refuse to comply. However, the initial risk protection order issued by the courts is a temporary order. Within 14 days, in Florida (other states may vary), the court must schedule a hearing on the risk protection order. At this hearing, the respondent has the opportunity to defeat the order and to receive their firearms back. The petitioner must prove to the court by clear and convincing evidence that the respondent poses a significant danger of causing personal injury to himself, herself, or others by having in his or her custody or control, or by purchasing, possessing, or receiving a firearm or any ammunition. However, the respondent MUST comply with the initial temporary order, which Smith did not do.
Although risk protection orders are civil orders, violating them results in criminal prosecution. On December 6th, 2019, the prosecutor of Smith’s case convinced the jury of his guilt by playing a body-camera video. The video shows the deputies allegedly explaining Smith’s rights, the requirement to surrender his weapons, and noting he could have an attorney challenge the Risk Protection Order in court after he surrendered his firearms. The jury deliberated for less than an hour before returning a guilty verdict.
Broward County Circuit Judge Ernest Kollra ordered a pre-sentencing investigation for Smith, who now faces up to five years in prison for disobeying the Risk Protection Order and refusing to surrender his firearms.
What Can Gun Owners Take Away From This?
While it will be different in every state, it is important to note, when the Sheriff shows up at your door with the temporary risk protection order, you should calmly comply and surrender your weapons. Even though this is a very stressful and upsetting time, you must keep your composure and cooperate. For example, an angry or violent reaction towards the order will only bolster the case against you at the hearing on the risk protection order. The time to fight the risk protection order is in court at your hearing, not with the armed deputies on your doorstep.
As a gun owner, you must know the law. Please remember, ignorance of the law is not a defense.
Keeping gun owners armed and educated is one of our core missions at U.S. LawShield. Educational materials like videos, blog posts, and newsletters are continually produced so our members can be in the know.
Furthermore, Independent Program Attorneys are available to answer your questions regarding red flag laws or any other firearm or self-defense related questions. Contact U.S. LawShield and ask to speak to your Independent Program Attorney.
Does TEXAS Law Shield represent us in cases like these?
Hello Jarrett, we’re glad you asked. Check out our announcement here: https://www.uslawshield.com/red-flag-law-announcement/
The main takeaway is 1. comply with temporary seizure and 2. “I am invoking my right to remain silent.” 3. Call TX Law Shield.
Those “ red flag “ laws are no more than pure Hitler gestapo tactics organized by liberals that are hell bent to get our guns one way or another…if my neighbor hates guns and knows I possess them and it offends them then their complaint to authorities can cause confiscation of my legal obtained firearms…this needs to be sent to the Supreme Court for legality….
But the real problem comes after a court date is set. While the law requires a date within 14 days it can be continued INDEFINITELY. As long as the state can show cause it can be dragged out till hell freezes over.
Let the people give you the power. They will gladly trade freedom for security. Then they shall have neither.
So who pays for all this legal stuff? If the court finds in favor of the gun owner then the person invoking the red flag should pay all costs and fees as well as lost time from work.
Otherwise you go broke or just give you your guns to save money.
the forceful take over of a free society doesnt happen over night like hollywood movies like you to think. No, they happen slowly, over time. Red flag laws are nothing but an attempt at getting america to become disarmed. Disarming a nation is the 1st step to conquering.
The punishment is rendered before proof of a crime. Guilty until proven innocent. if we keep letting them (liberals) do what they want, they win, we lose.
So when you get a red flag order, your guns are taken away, but does it means that you loose your 2nd ammendment right? you cannot buy firearms from that point on until your are cleared?
Ignorance of the law is no defense unless you are a politician or have powerful friends who are politicians.
We are clearly speaking here about a lack of impulse control and mental instability. Has nothing to do with politics. Individuals who are unstable and shoot at anyone in anger, should not be able to have any weapons to do any further damage. It just makes complete sense. If you are responsible with your own weapons then this should not be a threat to you.
But what you must understand this individual had been convicted of NOTHING. A hearing was held without his knowledge or ability to contest before his property was ordered seized. The Constitution requires due process before property seizure. Where was the due process?
Question: If the person whose firearm is to be confiscated by the LEO, and the LEO doesn’t know what that person owns – say more than 1 firearm – is the person obligated to turn over ALL firearms and ammo? For example, if the person has more than 1 safe, stores most items in safe #1 but only and emergency weapon & ammo in safe #2, and the LEO is only shown safe #1, what would be the legal thing to do? Surrender all would be my assumption, but I’m not sure.
How exactly could or would red flag laws apply to someone who holds a federal firearms license? Would it be harder for a court to obtain an order against a federal firearms license holder?
I would like to point out that if in the process of carrying out a Red Flag order, the serial numbers of weapons appear on any paperwork along with the name and location of the defendant, this would be a clear violation of Florida State Constitution which states that the registration of firearms in the State of Florida is prohibited.
To clarify: Registration of firearms by the government of Florida is prohibited. The registry of gun sales resides with the individual gun dealers licensed by ATF and the State of Florida.
I don’t know about the one in FL, but the one in Colorado contains the procedure where in addition to serving the court-issued order for confiscation, you are placed on the federal Prohibited list, which prevents you from racing out and purchasing another gun to replace what was confiscated.If and when the ERPO is lifted, you are removed from the list and your 2A rights are restored.
Simple documented weapons in the safe, need l say more?
Are these considered a search warrant? Do the police have the right to enter and search your property or can you ask them to wait outside while you get the firearms? Do they come with a list of registered firearms to collect?
No, the first thing you should do is move.
The 2nd revolution of the United States is almost at hand. I still say “you can have my weapon when you pry it from my cold dead hands”…….just say’in …..
The last comment is a little crazy, do you think for one minute that a Police Officer is going to wait outside while you retrieve your weapon(s). If he does he should be fired immediately. So the person goes back inside, loads his weapons and shoots the officer(s) who came to the house. Yes they are an order of PROTECTION for everyone, and grant the officer the right to search your home, person or anyplace that the prticular weapons could be hidden.